Livingston v. State

• Decision Date: 18 October 1989
• Docket Number: No. 53S00-8803-CR-295,53S00-8803-CR-295
• Citation: 544 N.E.2d 1364
• Parties: Harold E. LIVINGSTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1364

544 N.E.2d 1364

Harold E. LIVINGSTON, Appellant, v. STATE of Indiana, Appellee.

No. 53S00-8803-CR-295.

Supreme Court of Indiana.

Oct. 18, 1989.

Susan K. Carpenter, Public Defender and David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. and Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Following a jury trial in the Monroe Superior Court, Defendant-Appellant Harold Livingston was convicted of Murder and Robbery and was sentenced to a term of forty-five (45) years.

Five issues are presented for our review in this direct appeal:

1. erroneous excusal of a juror after the jury had been sworn and subsequent refusal of the trial court to grant Livingston's motion for a mistrial;

2. sufficiency of the evidence;

3. refusal of the trial court to permit Livingston to introduce photographic exhibits into evidence;

4. error of the trial court in permitting a State's witness to introduce improper photographic exhibits; and

5. permitting the State to introduce a hair into evidence without establishing a proper chain of custody.

Livingston also alleged ineffective assistance of counsel but claimed trial counsel did not properly prepare the issue for briefing and withdrew it from consideration at this time. Therefore, the issue of ineffective assistance of counsel will not be discussed in this opinion.

The facts show that Livingston and Allen DeMoss were both charged with the murder of Allen's cousin, Ronnie DeMoss. Allen DeMoss gave several statements to the police, implicating himself and Livingston, pleaded guilty and was sentenced to a term of forty years. He testified for the State. It appeared Allen DeMoss was offered an opportunity to get ten years reduced from his sentence in return for his testimony. The facts showed that on March 4, 1986, victim Ronnie DeMoss was arrested and charged with molesting and exploiting Travis DeMoss, Allen's younger brother. Allen knew of the charges and was aware of the possibility that Ronnie DeMoss had taken exploitative photographs of his brother, demonstrating the sexual encounter. Allen was also aware of allegations that Ronnie had molested another cousin. Allen claimed that he, himself, had been molested by Ronnie in the past. Allen then decided to seek revenge by stealing various electronic accessories out of Ronnie's trailer. To that end, he had arranged to sell some of the items to others. In the week preceding the perpetration of this crime, Allen was living in his car which was parked behind Ronnie's trailer. Livingston invited Allen to stay at Livingston's house because his parents were out of town and DeMoss accepted. They spent much of their time drinking beer and vodka and discussed the contemplated burglary of Ronnie's home. Livingston was known to have expressed disdain for "faggots" and "queers" and agreed to help in the burglary. When the two of them left the house of a friend to go to Ronnie's trailer, Livingston told the occupant of the house he was going to do something about the "faggots" in the neighborhood.

Ronnie let the two of them into the trailer and while Allen was arranging to select items to take, Livingston grabbed Ronnie from behind and started to beat him. Allen hauled items out of the house and saw Livingston striking Ronnie on the floor but did not see a knife in his hand. Ronnie died from a number of stab wounds. After they left the residence, Livingston threw the knife into a field. It was later recovered and bloodstains on it were consistent with the blood of the victim. Hair found on the knife and on Ronnie's clothing were consistent with Livingston's type.

I

The question presented is whether jeopardy attaches when the twelve member jury is sworn but the alternates have not been selected and sworn. Indiana has not yet faced this precise situation but its resolution by other jurisdictions is helpful to our consideration of the issue.

The record here reflects that after both prosecution and defense had the opportunity to individually question John Ostler, both sides accepted him as the twelfth juror. The trial judge immediately swore in the twelve jurors. The trial judge then announced to counsel and to the sworn jurors that two alternate jurors were going to be selected and the twelve just sworn would be excused while that was being done. At that point, John Ostler, who had just been sworn as a juror, informed the court that after having thought about it overnight, he realized he vaguely knew a John Livingston but had not realized it earlier when the name of John Livingston had been read as one of the potential witnesses who might testify. The trial court then conducted a hearing at which it was determined that the John Livingston known by Ostler was Harold Livingston's brother who was listed as a possible witness. Ostler testified he had never talked with Livingston about this case nor even knew that John Livingston was connected to this case. He knew John Livingston as a bartender, had become friendly with him and thought he would tend to believe his testimony because he considered him a truthful person. On questioning by the court and counsel, Ostler stated he would be willing to fairly weigh all the evidence and make determinations of credibility including John Livingston's but admitted it might be difficult for him. The State then challenged Ostler and the trial judge granted the challenge removing Ostler. He then advised everyone they would select a replacement for Ostler as well as two alternate jurors with the parties having the right to use their remaining peremptory challenges. Livingston objected to Ostler's removal and moved for a mistrial which was denied by the trial court.

We start with the well established principle that a defendant is in jeopardy when the jury selected to try his cause is sworn. This principle was well articulated by Justice Jasper in Maddox v. State (1951), 230 Ind. 92, 102 N.E.2d 225:

This court has decided on numerous occasions that when a person is properly charged with a crime, has been arraigned and pleaded to such charge, has been put upon his trial before a tribunal properly organized and competent to try him for the offense charged, and a jury has been impaneled from persons competent to sit on the trial and duly sworn, then jeopardy attaches.

Id. at 98, 102 N.E.2d at 228 (citing Armentrout v. State (1938), 214 Ind. 273, 275, 15 N.E.2d 363; Gillespie v. State (1907), 168 Ind. 298, 80 N.E. 829; Adams v. State (1884), 99 Ind. 244).

Further, however, it is well established that defendant is not placed in jeopardy until the entire jury is sworn and is fully constituted to try the defendant on the charges brought. Judge Robertson, writing for a unanimous court in Godfrey v. State (1978), 177 Ind.App. 644, 380 N.E.2d 621, held that jeopardy had not attached when two of the twelve jurors had not taken the oath. In Godfrey, at the close of the giving of the oath, two jurors remained standing and stated they had not taken the oath and would suffer real hardship if they were to sit on the jury. Both of those jurors were excused by agreement of the parties. The following morning the trial court declared a mistrial and discharged the jurors who had been sworn over the defendant's objection. The trial court found that jeopardy had not attached because some members of the putative panel were not sworn and he thereupon excused all of the panel and had the parties select an entire new jury. Although the Court of Appeals felt the action of the trial judge in excusing the entire panel was questionable, it found there was no error in the actions of the trial court because jeopardy had not attached. The Court of Appeals found one is not in jeopardy when the trial starts and one or more of the jurors have not been sworn. Id. at 646, 380 N.E.2d at 622. We agree that a jury is not fully constituted and in a position to try the cause until the entire jury has been sworn.

The question here is what effect the use of alternate jurors pursuant to Ind.R.Tr.P. 47(b) has in the final constitution of the jury. The State contends the entire jury was not selected and sworn until the alternates were selected and sworn along with the original twelve. Although there is no Indiana or United States Supreme Court case directly on point, the principle stated in Godfrey has been interpreted with respect to alternate jurors as meaning the entire jury is not sworn and jeopardy has not attached until the alternates are impaneled and sworn. California decided this issue in a factual situation very similar to the instant case in People v. Burns (1948), 84 Cal.App.2d 18, 189 P.2d 868, cert. denied (1948), 335 U.S. 844, 69 S.Ct. 66, 93 L.Ed. 394. In Burns, a jury of twelve had been selected and sworn to try the case and were then admonished and allowed to separate until trial. The court then announced its intention to impanel alternate jurors. In selecting alternate jurors the court was acting pursuant to Sec. 1089 of the California Penal Code which provided for the use of alternate jurors similar to provisions of our trial rule 47(b). After one alternate was selected but not sworn, the court learned that one of the twelve regular jurors had a hit and run charge pending against him. Over objection of the defendant, the court removed the juror, swore the alternate and seated him on the regular panel in place of the excused juror. The trial court rejected a motion for dismissal and discharge on double jeopardy grounds, and the defendant advanced that argument on appeal. The California Supreme Court acknowledged that jeopardy attaches when the jury is impaneled and sworn but found that previous cases which considered the issue had not dealt with the more recent enactments which provided for the use of alternate jurors. The court found the rule still applies whether there are alternates or not but saw as the central question whether...